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The University of Florida (Levin College of Law) is seeking applicants for several tenure-track/tenured faculty positions, two of which explicitly target Civil Procedure. See announcements here and here.

Governor Rick Perry has signed a new tort reform law into effect in Texas. The Houston Chronicle reports that the law will shift court and attorney costs to losing plaintiffs and give judges "expanded powers" to dismiss "frivolous lawsuits." The accounts I have read all report that it is losing plaintiffs (not losing parties) who must pay costs. Anyone with more insight into this issue is welcome to contact me!

RJE

*UPDATE*

My bleg has worked! Our very own Texan, Beth Thornburg writes:

The law, Download HB00274Final, actually requires the Texas Supreme Court to make rules for a new motion to dismiss (apparently on the pleadings – “dismissal of causes of action that have no basis on law or fact on motion and without evidence”), and to provide for a cost shift to the “prevailing party” when the motion is granted or denied. So it looks to me like under the language of the bill, a defendant who unsuccessfully moved to dismiss could be ordered to pay the plaintiff’s attorney fees.

The bill also changes a bit (and somewhat inscrutably) the offer of judgment rule.

And it requires the Court to make rules for cheaper and faster disposition of cases where the amount in controversy is less than $100,000.

We covered earlier the strange turn of events in Comer v. Murphy Oil USA, a class action lawsuit against several chemical and energy companies alleging that their operations “caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina.” Here's how things unfolded:

(3) En Banc Fifth Circuit grants rehearing, which automatically vacated the panel opinion. Due to several recusals, only nine of the sixteen judges voted.

(4) An additional Fifth Circuit judge is recused, leaving only eight judges—one less than a quorum—to hear the case en banc.

(5) A majority of the quorum-less en banc Fifth Circuit reinstates the district court’s order dismissing the case. It does not reinstate the validly issued Fifth Circuit panel decision that had reversed the dismissal. It reasoned:

This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3. Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.

The Fifth Circuit has now proposed an amendment that would prevent this situation from arising in the future. New Fifth Circuit Rule 41.3 would read:

41.3 Effect of Granting Rehearing En Banc. Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate. If, after voting a case en banc, the court lacks a quorum to act on the case for 30 consecutive days, the case is automatically returned to the panel, the panel opinion is reinstated as an unpublished (and hence nonprecedential) opinion, and the mandate is released. To act on a case, the en banc court must have a quorum consisting of a majority of the en banc court as defined in 28 U.S.C. § 46(c).

For those of you anxiously awaiting the opening of the movie Hangover 2, there is some civ pro-oriented entertainment to keep us occupied in the meantime. In the movie, Ed Helms' character wakes up in Bangkok with a face tattoo that mirrors Mike Tyson's (who also appears in this film). The artist who designed Tyson's face tattoo sued Warner Brothers for copyright infringement. Although the federal judge refused to grant an injunction which would bar the opening of the movie, he has stated that litigation on the merits can indeed go forward.

Last week the U.S. Court of Appeals for the Fifth Circuit issued a decision in In Re Crystal Power Co., Ltd. (No. 11-40115). In March the same panel had issued a writ of mandamus instructing the district court to remand the case to state court (2011 WL 944371). The more recent decision (2011 WL 1833874) withdraws that order and denies the mandamus petition. With some very robust footnotes omitted, Judge Patrick Higginbotham writes:

We are now persuaded that the petition does not meet the stringent demands of the All Writs Act for extraordinary relief. Supreme Court precedent does not ordinarily allow mandamus review of district court decisions that, while not immediately appealable, can be reviewed at some juncture. The Court has instructed that our review of an erroneous refusal to remand must await appeal from a final judgment, even when this forces the parties to submit to proceedings before a tribunal that lacks competent jurisdiction over their dispute. To the same end, the Court has advised that the ordinary costs of trial and appeal are not a sufficient burden to warrant mandamus relief.

Three questions remain. First, whether a zone of review under the All Writs Act remains for cases where post-judgment review of an interlocutory order is an illusion—where the promise of review at some later time is not meaningful. Second, whether mandamus may remain available when delay would cause greater hardship than the normal cost of trying a case to judgment. Third, whether the precedent of this circuit can be defended on these grounds.

Since Crystal Power has not proffered any reason why post-judgment review would be ineffective or why the cost of delay would be atypical, we can leave these questions to another day.

Today the Supreme Court issued its decision in General Dynamics Corp. v. United States(No. 09-1298), which addresses “what remedy is proper when, to protect state secrets, a court dismisses a Government contractor’s prima facie valid affirmative defense to the Government’s allegations of contractual breach.” [Slip Op. 1] In this case, the contractors’ defense was “that the Government’s failure to share its ‘superior knowledge’ about how to design and manufacture stealth aircraft excused their default.” [Slip Op. 2]

Writing for a unanimous Court, Justice Scalia notes that “in the present context the state-secrets issue raises something quite different from a mere evidentiary point. . . . What we are called upon to exercise is not our power to determine the procedural rules of evidence, but our common-law authority to fashion contractual remedies in Government-contracting disputes.” [Slip Op. 6-7] He explains:

Where liability depends upon the validity of a plausible superior-knowledge defense, and when full litigation of that defense would inevitably lead to the disclosure of state secrets, neither party can obtain judicial relief.…Judicial refusal to enforce promises contrary to public policy (here, the Government’s alleged promise to provide superior knowledge, which we could not determine was breached without penetrating several layers of state secrets) is not unknown to the common law, and the traditional course is to leave the parties where they stood when they knocked on the courthouse door. [Slip Op. 7-9]

In conclusion:

[T]he state-secrets evidentiary privilege is not to be lightly invoked. Courts should be even more hesitant to declare a Government contract unenforceable because of state secrets. It is the option of last resort, available in a very narrow set of circumstances. Our decision today clarifies the consequences of its use only where it precludes a valid defense in Government-contracting disputes, and only where both sides have enough evidence to survive summary judgment but too many of the relevant facts remain obscured by the state-secrets privilege to enable a reliable judgment. [Slip Op. 13-14]

Abstract:

Adequacy of representation is a central concept in the law of case aggregation. Yet proceduralists today, some seventy years after the germinal case of Hansberry v. Lee, still lack a clear understanding of what representation means in adjudication and why a nonparty can be bound on a representation theory. The result is normative confusion and doctrinal muddle. This Article, which is a contribution to a George Washington University Law School conference on the ALI’s Principles of the Law of Aggregate Litigation, analyzes representation as a justification for case aggregation. Part I describes the puzzle of adjudicative representation. It shows that representation has no distinctive role to play in precluding absentees when outcome quality is the only goal and as a result it is possible within an outcome-based theory to justify a body of preclusion doctrine that extends well beyond current limits. Representation does have a special role to play when process-based participation is added to the mix, but the body of nonparty preclusion law it supports is so limited that even the class action has trouble fitting in. The result is a serious mismatch between justification and doctrine: outcome-based justifications go too far and process-based justifications do not go far enough. Part II then critically examines three approaches to restoring the fit between doctrine and justification, all of which in one way or another defend some version of “class action exceptionalism,” the position that the class action is uniquely suited to be a nonparty preclusion device. Part II shows why none of these three approaches work and why class action exceptionalism is flawed. Part III approaches the puzzle of adjudicative representation in a different way. It takes the mismatch between justification and doctrine as reason to rethink justification and in particular to critically examine the conventional account of the process-based day-in-court right. Part III reconstructs that right to make it a better version of what the Supreme Court actually means it to be. The result is a process-based day-in-court right that rejects class action exceptionalism and is flexible enough to accommodate some forms of case aggregation and broader nonparty preclusion. Part IV briefly sketches the implications of Part III’s analysis for how to approach the issue of the proper scope of collateral attack on class settlements.

We covered earlier the Supreme Court’s decision in AT&T Mobility v. Concepcion. Splitting 5-4, the Court held that the Federal Arbitration Act prevented the consumers from relying on state-law unconscionability principles in challenging a contractual waiver of the right to arbitrate disputes on a classwide basis. There’s been a lot of commentary on the case in the ensuing weeks. Here are some links:

Yesterday the U.S. Court of Appeals for the Ninth Circuit issued its decision in Bauman v. Daimler Chrysler Corp., No. 07-15386, ___ F.3d ___, 2011 WL 1879210. The unanimous opinion, authored by Judge Stephen Reinhardt, rejected the argument that DaimlerChrysler was not subject to personal jurisdiction in California. It begins:

Plaintiffs-Appellants (the “plaintiffs”), twenty-two Argentinian residents,bring suit against DaimlerChrysler Aktiengesellschaft (DCAG) alleging that one of DCAG’s subsidiaries, Mercedes-Benz Argentina (MBA)collaborated with state security forces to kidnap, detain, torture, and kill the plaintiffs and/or their relatives during Argentina’s “Dirty War.”Some of the plaintiffs are themselves former employees of MBA and the victims of the kidnapping, detention, and torture, while others are close relatives of MBA workers who were “disappeared” and are presumed to have been murdered. The only question before us is whether the district court had personal jurisdiction over DCAG. The district court granted DCAG’s motion to dismiss the case for lack of such jurisdiction. We conclude, however, that DCAG was subject to personal jurisdiction in California through the contacts of its subsidiary Mercedes-Benz USA (MBUSA). We hold that MBUSA was DCAG’s agent, at least for personal jurisdictional purposes, and that exercise of personal jurisdiction was reasonable under the circumstances of this case. [footnotes omitted]

The Ninth Circuit had issued an opinion in the case two years ago (from which Judge Reinhardt dissented), 579 F.3d 1088, but that opinion was vacated following the plaintiffs’ petition for rehearing. 603 F.3d 1141.

Abstract: Almost all courts and scholars disfavor the use of class actions in mass tort litigation, primarily because class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court has stressed the importance of litigant autonomy in other contexts, most recently in decisions involving the Rules Enabling Act, preclusion, and arbitration. Indeed, this term the Court will decide four cases involving class actions that will likely reaffirm the importance of protecting a plaintiff's autonomy over the claim. In all of these contexts the Court, and most scholars, have understood protecting litigant autonomy as a requirement of procedural due process.

In this article I argue that protecting litigant autonomy in the mass tort context is mistaken, and, in the process, challenge basic notions of procedural due process. Relying on recent property theory, I first show that protecting litigant autonomy in mass tort litigation causes collective action problems that undermine the deterrent effect of the litigation. Thus, protecting litigant autonomy leads to more mass torts. Counterintuitively, this tragedy can be avoided by taking away each plaintiff's autonomy over the claim, such as through a mandatory class action.

I then use the self-defeating nature of litigant autonomy in the mass tort context to reexamine the law of procedural due process. I argue that an interest in deterrence, understood as an individual interest in avoiding the tort altogether, should be included in the due process analysis. I also argue for a more impartial method to balance competing interests. I conclude that the law of procedural due process should permit mandatory collective procedures in mass tort and similar contexts. I further suggest that the law of procedural due process should focus less on procedural rights such as litigant autonomy, a "day in court," and even the opportunity to be heard, and focus more on often ignored aspects of procedural design.

The proliferation of digital evidence and discovery has raised serious questions about litigation fraud in recent years. Legal tabloids are often headlined with the latest example of discovery abuse that resulted in multi-million dollar sanctions. But what about the cases of serious discovery abuse or perjury that neither the opposing party nor the court ever catch? These abuses may very well lead to judgments that do not reflect a result based on the true merits of the case. If a party seeks relief based on fraud within one year from the entry of judgment, Federal Rule of Civil Procedure 60(b) gives the trial court plenary power to vacate the judgment. For fraud discovered outside of one year, however, the district court’s powers are more limited, and relief is often contingent upon whether the fraud is deemed intrinsic or extrinsic. Indeed, a majority of the circuits hold that after one year a party cannot obtain post-judgment relief based on perjury or discovery abuse because these frauds are intrinsic. This article contends that the distinction between intrinsic and extrinsic fraud should be abolished because Twombly and Iqbal have created an effective pleading-stage screening mechanism to prevent the meritless re-litigation of cases.

Professor Scott Dodson (William & Mary) has posted on SSRN a draft of his article Hybridizing Jurisdiction, which is forthcoming in the California Law Review. Here’s the abstract:

Federal jurisdiction – the “power” of the court – is seen as something separate and unique. As such, it has a litany of special effects that define jurisdictionality as the antipode of nonjurisdictionality. The resulting conceptualization is that jurisdictionality and nonjurisdictionality occupy mutually exclusive theoretical and doctrinal space. In a recent Article in Stanford Law Review, I refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by explaining that nonjurisdictional rules can be “hybridized” with any – or even all – of the attributes of jurisdictionality.

This Article drops the other shoe. Jurisdictional rules can be hybridized, too, and in myriad forms. The result is a far more complex world than what the simple – but fallacious – dichotomy of jurisdictionality and nonjurisdictionality suggests.

Hybridization enables parties and courts to regulate federal jurisdiction in normatively desirable ways. Court control may re-establish power to inject considerations of fairness into jurisdictional issues. Party control may alleviate some of the costs of jurisdictionality. Further, hybridization can achieve these regulatory rewards while simultaneously retaining a healthy, formal distinction between jurisdictionality and nonjurisdictionality. The result is a cleaner, truer, and more useful conceptualization of jurisdiction.

Chevron has been battling a massive environmental lawsuit brought by citizens of Ecuador for years. The case began with a procedural bang: Chevron successfully convinced the S.D.N.Y. to dismiss the case for forum non conveniens in favor of trying the case in Ecuador. The Ecuadorian court found for the plaintiffs, assessing one of the largest judgments in history on Chevron ($18 billion), and have filed lawsuits in the U.S. to attach Chevron's property and enforce the judgment.

Now Chevron is challenging enforcement, having secured a preliminary injunction from the S.D.N.Y. as to enforcement and attachment. The plaintiffs have now asked the Second Circuit to lift the injunction -- in part because it blocks access to funds that the plaintiffs' lawyers believe they need in order to fight a racketeering lawsuit that Chevron has brought against the plaintiffs and the Ecaudorian government.

Professor Jordan Singer (New England) has posted on SSRN a draft of his article, Proportionality's Cultural Foundation, which is forthcoming in the Santa Clara Law Review. Here’s the abstract:

Since the 1980s, a variety of provisions designed to prevent excessive pretrial discovery have been incorporated into the Federal Rules of Civil Procedure. By almost all accounts, however, these “proportionality” rules have not met their stated goals. The percentage of cases with high levels of discovery has not changed in decades, and concerns about disproportionate discovery are as pronounced as ever. I argue that the failure of the proportionality rules stems from a disconnect between the rules and the prevailing litigation culture. The rules incorrectly assume that excessive discovery is caused by attorneys abusing their discretion during the discovery process, and accordingly seek to limit that discretion. But attorney discretion is not the problem, and in fact attorneys and judges rely on the broad exercise of attorney discretion to create efficient, predictable, and fair resolutions to civil cases. Because the rules directly conflict with cultural norms, they are largely ignored in practice. I therefore propose a radically different approach to combating excessive discovery, by removing the existing restrictions on attorney discretion and implementing new procedures designed to emphasize the cultural values of civil litigation that naturally promote controlled discovery.

Federal courts frequently confuse the Rooker-Feldman doctrine with Younger abstention and preclusion law, often using these doctrines interchangeably to dismiss actions that would interfere with state court proceedings. For years, scholars argued that the Supreme Court should alleviate this confusion by abolishing the Rooker-Feldman doctrine altogether. The Court recently refused to so, however. In Exxon Mobil Corp. v. Saudi Basic Industries Corp. and Lance v. Dennis, the Court reaffirmed Rooker-Feldman’s vitality, and held that the doctrine plays a unique role, completely separate from abstention and preclusion rules. And yet these decisions leave a key question unanswered: exactly how does Rooker-Feldman interact with Younger abstention and preclusion law? This Article explores the relationship between these three doctrines, and articulates two unique roles that Rooker-Feldman can play. First, Rooker-Feldman is the only doctrine that bars federal court claims complaining of injuries caused by final state court judgments. Second, in the context of civil actions and claims for monetary relief, Rooker-Feldman is the only doctrine that bars litigants from collaterally attacking non-final judgments.

(The Supreme Court suggested minor style revisions to Evidence Rules 408(a)(1) and 804(b)(4), as approved by the Judicial Conference in September 2010. The Rules Committees and the Executive Committee acting on behalf of the Judicial Conference approved the suggested revisions to Evidence Rules 408 and 804 on March 31, 2011.)

The rules amendments and new rules were transmitted Congress in accordance with the Rules Enabling Act, and will take effect on December 1, 2011, unless Congress enacts legislation to the contrary.

In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend that a focus on clarity in isolation, in lieu of simplicity or accessibility, both furthers Dodson’s project of illustrating that the value of clarity is often a false idol and reveals the inherently empirical nature of the question. I close by noting that although Dodson’s piece importantly demonstrates that jurisdictional clarity comes at a cost, his inability to resolve these underlying empirical questions makes it unlikely that he will quiet those advocating clarity-based jurisdictional reform.

From Professor S.I. Strong (Missouri) comes the following announcement:

Gary Born will give the keynote address at a symposium entitled “Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration,” to be convened at the University of Missouri School of Law on October 21, 2011. A works-in-progress conference and a student writing competition is being organized in association with this event, and the University of Missouri School of Law is issuing a call for papers and proposals.

Proposals for the works-in-progress conference are due by May 20, 2011, with responses anticipated in mid-June. The works-in-progress conference will be held at the University of Missouri on October 20, 2011, the day before the symposium itself.

This appeal presents the question, inter alia, as to whether the word “sue,” as used in the Credit Repair Organization Act, means “arbitrate.” Or, perhaps the question is, as Alice put it: “whether you can make words mean so many different things?” We conclude that Congress meant what it said in using the term “sue,” and that it did not mean “arbitrate.”